Thursday, 26 March 2009

Rights and irresponsibilities

A couple of days ago the government launched a discussion about what it calls "rights and responsibilities". The Green Paper in which the scope of the discussion is contained sets out the government's position clearly. They seek to establish a new Bill of Rights. There is no special magic in the words "Bill of Rights" because there is no universal legal or linguistic limitation on what a state or government can include in something it calls a Bill of Rights. It could include fundamental constitutional principles only, or it could add specific laws of a non-constitutional nature. Following the latter course merely stores up problems for later.

Constitutional principles are all about the powers of the institutions known collectively as the State. In the UK those institutions grew up in various ways over time and many of the limitations on their powers are defined solely by convention. In recent times many of the ancient conventions (some of which are not actually particularly ancient) have been ignored by governments of both parties in favour of the unsupportable "I'm in office, therefore I'll do it how I want". Margaret Thatcher was noted for riding roughshod over her cabinet when she felt their collective view was wrong and that attitude has been taken further in the Blair and Brown years by the virtual abolition of cabinet government, with decisions being taken by a small cabal of the Prime Minister's trusted advisors (not all of whom are members of the government let alone the cabinet). The relationship between the executive and the legislature has also changed beyond recognition with policy announcements being leaked to the press and then announced to the press long before they are put to Parliament. Debate of important new legislation is curtailed like never before and some very serious issues are not allowed to be debated at all.

These changes of approach could not have occurred if the powers of the Prime Minister, the cabinet, the executive as a whole and the legislature were enshrined with specificity in an overriding constitutional document. I can see a case for such a document being produced provided it is limited to defining the powers of the main institutions of the State and contains a method of enforcement. The exercise is far more easily said than done, but that does not make it impossible.

What makes me shiver in anticipation of something truly ghastly is the present government's notion of a constitutional document setting out the responsibilities of the little people to each other and to the State. At the moment we owe one duty to both each other and to the institutions of the State. We must comply with the law. Nothing else is needed and nothing else is appropriate. If I breach my neighbour's legal rights he can seek a remedy against me through the courts. If I breach the criminal law the State can prosecute me through the criminal courts. In either event I will have done the same thing, I will have failed to comply with the law.

That is not to say that we are not subject to all sorts of forces that compel us to act in particular ways even though the law does not require us to do so. Most of us try to be polite and to treat people with respect, others aren't particularly bothered and others again are rude and insensitive. How we behave in ordinary everyday situations is a product of our upbringing and our own values of what is right and wrong. It is impossible to legislate for politeness, for helping little old ladies across the road, for community bulb-planting sessions and all the other nicenesses we do to make our lives less shallow and empty than they would otherwise be. Actually, that isn't right. Legislation can be passed and we can have Community Politeness Officers stationed at every supermarket check-out to hand a fixed penalty notice to those who fails to utter a please or a thank you. In the real world, however, legislation of such a nature would swiftly bring the law into even greater disrepute than the 3,000-odd new offences created over the last decade.

Against that background we have this Green Paper discussing rights and responsibilities. Most of it is concerned with enshrining the responsibilities of the little people into some sort of advisory code. The Green Paper specifically says that the government does not propose for such a code to have the force of law, yet there are lots of lines in the document and one does not even need to read between them to see that that is exactly what they have in mind. Time and again they mention specific responsibilities, such as attending court to give evidence and reporting activity consistent with money-laundering, and assert that they are not responsibilities compelled by law, whereas they are compelled by law. They suggest the code might contain a responsibility to treat NHS staff and other public sector employees with respect. Why just public sector, why not the lady behind the bacon counter at the supermarket and the waiter who serves your bowel-burning curry? If the public sector deserves special treatment those working in it will want to receive that special treatment not just hear that people are being invited to treat them particularly well. They suggest it should contain a statement of our responsibility to protect the environment, yet different people view environmental issues in different ways - paper bag or plastic bag, which is more "green"? You might be surprised by the answer, or you might not, it rather depends how you define "green".

And then the vital question arises. What possible use is any such code unless it can be enforced? In truth there is an answer to that rhetorical question because one can look at the Highway Code and find a set of guidance about how to drive with safety and consideration that has served the country well for many years and does not, directly, have the force of law. Some of the guidance in the Highway Code reflects the law but it is failure to comply with the law that is an offence not failure to comply with the Code itself. However, failure to comply with advisory aspects of the Code can be taken into account by a court when considering whether someone was driving without due care and attention. What started out as a guide to help those who might not understand the risks involved in driving has morphed over the years into a piece of quasi-legislation.

There might seem no harm in legislation saying, in effect, "please be nice to each other" but it's hard to believe it will stop there. It must be considered against the current background of law including the catch-all law against "anti-social behaviour". At present being rude to a hospital receptionist is probably not caught by that law (although it runs the risk of you having to wait longer to be seen by a nurse or doctor). But for how long will that be the case if there is a new Responsibilities Code?

Another theme running through the Green Paper is Human Rights. It is said over and again that we now have a Human Rights Act that defines our rights but not our responsibilities. It is pointed out, correctly, that one person's right is another person's responsibility. It is then asserted, incorrectly, that because our rights are now defined so our responsibilities should be codified. That is, to my mind, an illogical leap. If I have the right to privacy it follows automatically that you do not have the right to interfere with my privacy; the responsibility is implicit in the right it is not a separate thing, they are two sides of the same coin. Create a code of responsibilities and you risk creating free-standing responsibilities without correlative rights. The more detailed the code, the greater the chance of this happening.

We have seen a worrying trend over the last decade to create broad catch-all offences that are enforceable by fixed penalty notice and are far too open to interpretation by the day-glo jacketed minor functionary with power to issue such notices. The penalties cost but the additional cost and trouble of appealing against them is far greater. It contributes to a sense of the little people being put-upon by the State, where the easy targets are made to pay while real criminals escape with a warning. A Responsibilities Code is ripe with opportunities for this pattern to be widened.

At heart I am troubled by the very concept that the responsibilities of the little people to the State are constitutional matters. They are not, they are matters for the law. True constitutional issues are concerned with the power of the State not with how the little people comply with the manifestations of that power. They operate at a different level from the laws made pursuant to those constitutional powers. The State should exercise its powers through clearly defined laws so that the little people know that engaging in those defined activities risks incurring a penalty. The laws by which the State criminalises certain activities are not constitutional laws, they are laws made using powers the constitution gives the State. Our obligation to comply with those laws is also not a constitutional matter, it is merely the necessary consequence of the laws themselves.

The greatest danger is that a supposedly constitutional document will be used to promote party-political policies for which there is not universal support. Calling them constitutional matters will seek to lift those policies out of the realm of debate and make them immutable. The most obvious example in the Green Paper is the right to medical care free at the point of delivery. That is not a constitutional issue, it is a purely political issue. It seems to be an attempt to lock us into a State-run NHS until the end of time. Maybe that is wise, but there are arguments against it which should not be shut-out from debate and, indeed, which might become more persuasive to the little people in the future than they are today.

One thing which is fairly clear is that this exercise is looking to the next general election rather than looking to make good law. The government wants to present itself as the little people's friend and will pretend that this Green Paper and any resulting legislation have that effect. It seems to me that it is a confused and potentially dangerous move which, if recent history is anything to go by, will be riddled with provisions allowing for new law by Ministerial fiat.


Anonymous said...

what about a bill of rights for the inhabitants of this bankrupt isle for goverment with morals that works for their welfare and not its own members.

TheFatBigot said...

I understand your frustration, Mr DMC. There is greater chance of that happening if: (i) the Prime Minister cannot dictate because he has to carry his Cabinet with him, (ii) the Executive cannot dictate because the Legislature is guaranteed full time for debate and free votes and (iii) any laws that seek to extend the power of The State beyond the boundaries set by the constitution can be struck down by the Judiciary.

A Constitution setting these things in stone would be a good start because it would mean a self-serving government would have to think twice at every stage of the passage of legislation.

Anonymous said...

The biggest problem with any Bill of Rights is that its simply another branch of the government that interprets it. Its no coincidence that the UAS Bill of Rights and, indeed, Constitution have been watered down to be almost meaningless.

I fully expect gun ownership to be outlawed under Obama.